update WASHINGTON--Congress is about to consider an entertainment industry proposal that would authorize copyright holders to disable PCs used for illicit file trading.
A draft bill seen by CNET News.com marks the boldest political effort to date by record labels and movie studios to disrupt peer-to-peer networks that they view as an increasingly dire threat to their bottom line.

Sponsored by Reps. Howard Berman, D-Calif., and Howard Coble, R-N.C., the measure would permit copyright holders to perform nearly unchecked electronic hacking if they have a "reasonable basis" to believe that piracy is taking place. Berman and Coble plan to introduce the 10-page bill this week.

The legislation would immunize groups such as the Motion Picture Association of America and the Recording Industry Association of America from all state and federal laws if they disable, block or otherwise impair a "publicly accessible peer-to-peer network."

Anyone whose computer was damaged in the process must receive the permission of the U.S. attorney general before filing a lawsuit, and a suit could be filed only if the actual monetary loss was more than $250.

According to the draft, the attorney general must be given complete details about the "specific technologies the copyright holder intends to use to impair" the normal operation of the peer-to-peer network. Those details would remain secret and would not be divulged to the public.

The draft bill doesn't specify what techniques, such as viruses, worms, denial-of-service attacks, or domain name hijacking, would be permissible. It does say that a copyright-hacker should not delete files, but it limits the right of anyone subject to an intrusion to sue if files are accidentally erased.

Because Congress only has about five work weeks left before it is scheduled to adjourn for the year, the outlook for the draft bill is uncertain.

But because its sponsors include top Republican and Democratic committee chairmen, it could receive a warm welcome in the House of Representatives at a hearing tentatively scheduled for this fall. Coble is the chairman of the House subcommittee on intellectual property, and Berman is the top Democrat on the panel.

Berman wrote in an opinion article this month that "currently, copyright owners are unable to use some useful technological tools to deal with P2P piracy because they face potential, if unintended, liability under a variety of state and federal laws."

"It's a good bill," Gene Smith, a spokeswoman for Berman, said on Monday. "It's always hard to defend theft and piracy--this bill just puts into the hands of the copyright owners technologies that are already being used by the pirates."

Smith said the purpose of the draft bill was to "fight fire with fire, fight technology with technology."

Jessica Litman, a professor at Wayne State University who specializes in copyright law, said the draft bill improperly encourages "vigilante justice."

"I think it's wildly overreaching," Litman said. "Copyright owners are in essence asking Congress to say that peer-to-peer file trading is such a scourge, is so bad, that stopping it is more important than enforcing any other laws that federal or state governments may have passed on computer security, privacy, fraud and so forth."

Litman said that even if a copyright holder accidentally deleted a home video titled "Snow White," the owner of that PC could be out of luck. "Unless I can show economic harm, I can't even be compensated," Litman said. "Even if I want to be compensated, I have to jump through procedural hoops."

The film and music industries already are developing tools to use against rogue file swapping, though they've remained mum on the details. The RIAA says its members have the right to use any "lawful and appropriate self-help measure."

Fritz Attaway, the MPAA's senior vice president for government relations, endorsed Berman's approach on Monday, stressing that law-abiding Internet users should not be concerned.

"No one in the motion picture industry has any interest in invading your computer or doing anything malicious with your files," Attaway said. "The idea is to make unauthorized file sharing sufficiently inconvenient or at least unsuccessful."

The MPAA and RIAA did not respond to requests for comment on Tuesday.

The Electronic Frontier Foundation condemned the draft bill as a sop to Hollywood and the recording industry.

Digital lockdown?
"This is part of a greater strategy that's being implemented by the entertainment industry to lock up and control digital information in general," said Robin Gross, an EFF staff attorney. "The rights that we've enjoyed in the analog space are now being taken away from us because we're entering a digital realm."

Gross said she was concerned by the broad grant of immunity to copyright holders who become computer intruders. "When they screw up, they don't want you to be able to get some sort of retribution from them," she said.

Other sponsors listed on the draft bill include key legislators such as Reps. John Conyers of Michigan, the top Democrat on the full Judiciary committee, Lamar Smith, R-Texas, the chairman of a crime subcommittee, and Robert Wexler, D-Fla. Currently there is no companion legislation in the Senate.

The next step for the draft bill is the House Judiciary subcommittee on intellectual property. A representative for Coble said earlier this month to expect a hearing starting in September, when Congress returns from its August recess.

Berman announced plans for the legislation during a speech to a Washington trade association last month. He represents California's San Fernando Valley, adjacent to Los Angeles and Hollywood's cluster of entertainment companies.

Coble and Berman have jointly written a second draft bill that could sharply limit Americans' rights relating to copying music, taping TV shows, or transferring files through the Internet. But they have said they do not necessarily endorse the plan's details.